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Res 1357 - US West Cell Phone S COUNCIL BILL NO. 1717 RESOLUTION NO. 1357 A RESOLUTION ENTERING INTO AN AGREEMENT WITH U.S. WEST NEWVECTOR GROUP, INC. TO PROVIDE CEllULAR TELEPHONE SERVICES AND AUTHORIZING THE MAYOR TO SIGN SAID AGREEMENT. WHEREAS, the City of Woodburn and the Woodburn Police Department have used U.S. West cellular telephones since 1989; and WHEREAS, U.S. West Cellular, now known as Airtouch Cellular, has provided quality sales and service to the city and police department; and WHEREAS, the execution of an agreement with U.S. West/Airtouch Cellular should result in consistency of service and lower telephone rates; NOW, THEREFORE, THE CITY OF WOODBURN RESOLVES AS FOLLOWS: Section 1. That the City of Woodburn enter into an agreement with U.S. Newvector Group, Inc., for cellular telephone services and that the Mayor be authorized to sign said agreement on behalf of the city. Section 2. A copy of said agreement is attached hereto as Attachment" A" and is, by this referencerf~orated herei~ App,oved as to fO,"';: r ,:;vr/).. lr 6-7 {, City Attorney Date APPROVED: L--7/? /1t~A Nancy A. June 10, 1996 June 11, 1996 June 11, 1996 June 11, 1996 Passed by the Council Submitted to the Mayor Approved by the Mayor Filed in the Office of the Recorder ATTEST: 0llNG~L~- M~nant, City Recorder City of Woodburn, Oregon Page 1 - COUNCil Bill NO. 1717 RESOLUTION NO. 1357 .... ..-'". ORIGINAL CORPORATE ACCOUNT CELLULAR SERVICE AND EQUIPMENT AGREEMENT BETWEEN U S WEST NEWVECTOR GROUP, INC., d.b.a. AIRTOUCH CELLULAR AND City of Wood bum, Oregon Agreement # .... ". _, ..-"'-"~"~_"'~~~"""',,_,.,~"__"""""-"__,'-_"""""""'''_e~.,".,."~~_~.,~............___.__~'......,~o<<_''',.__._~,.. US WEST NEWVECTOR GROUP, INC., d.b.a. AIRTOUCH CELLULAR CORPORATE ACCOUNT CELLULARSER~CEANDEQUWMENTAGREEMENT Agreement # This is a Corporate Account Cellular Service and Equipment Agreement ("Agreement") made June 15.1996 (Effective Date), by and between U S WEST NewVector Group, Inc" d.b.a. AirTouch Cellular, \,AirTouch") and The Citv of Woodburn. Ore20n ("Customer"). 1. Scope. 1.1. Customer desires to purchase and AirTouch Cellular desires to furnish cellular products and related services described herein pursuant to the Agreement, only to Customer and authorized Customer cellular users who are current employees of Customer ("Subscribers"). 1.2. This Agreement authorizes Customer and Subscribers to purchase cellular equipment. All cellular telephones to be included in this Agreement shall be documented by AirTouch Cellular records. 1.3. Customer hereby subscribes for local cellular airtime within AirTouch Cellular markets, based on the Minimum Number of Lines indicated below, Customer agrees to pay AirTouch Cellular monthly for all minutes of use billed at the corresponding per-minute rate. Airtime will be rounded up in full minute increment, with a one (1) minute minimum. Calls are billed from send to end. In addition to the airtime rates set forth below, long~stance and roaming charges may apply. GOVERNMENT CALLING PLAN LEVEL SCHEDULE Plan Commitment Code Level Minimum Number of Lines Airtime Rate Monthly Access Fee GVT7 2YR 15 Peak.22 (7am-7pm weekdays) Off-Peak ~ (7pm-7am weektklys, weekends, holidays) $6.95 Standard features included: call forwardiIl2, call waitin2, conference callin2 2. Billing Responsibility. 2.1 To qualify for the Minimum Number of Lines commitment, all cellular telephones under this Agreement must have the same "Responsible Billing Party" and the same numeric portion of all Group IDs utilized for reporting, identifying those cellular telephones included in the Government Calling Plan, Any cellular telephones not included on Customer's Government Calling Plan Group ID numbers will not apply towards the Minimum Number of Lines commitment. 2.2 All charges and other amounts due under this Agreement will be the responsibility of Customer, If more than one party is named in this Agreement as a Responsible Billing Party, liability shall be joint and several. 95-c0rp,cont. . 2 May 28, 1996 ~. '~,., 3. rerm. This Agreement shall remain in effect for _ Q)year (s) from the Effective Date shown above, Any cellular telephone added during the term of this Agreement with a minimum service commitment required for service pricing or equipment eligibility shall survive this Agreement by said term, 4. Pricing Guarantee. If Customer agrees to a multi-year contract, AirTouch Cellular guarantees that if AirTouch Cellular offers a lower rate to any other customer at the same commitment level and agreement length, that same rate will be offered to Customer, Customer must agree to like terms and conditions, 5. Fraudulent Use. The parties acknowledge that cellular phone technology cannot currently provide total protection against unauthorized access and use of cellular phone services, Such unauthorized use may occur when persons unlawfully access the cellular system for such services (Le, programming a phone to appear as a lawful subscriber, commonly referred to "cloning") and thereafter place calls that are chargeable to the lawful subscriber of such cellular service, AirTouch Cellular will not hold Customer responsible for such unauthorized usage (airtime charges only) but retains sole discretion in determining which billed calls are the result of unauthorized use. Customer further agrees to cooperate with AirTouch Cellular andlor appropriate law enforcement agencies in any investigation into such unauthorized use, Customer acknowledges that AirTouch Cellular cannot make any adjustment to billed charges, authorized or unauthorized, for roaming charges, or long-distance or other toll charges billed by other carriers, In regard to other types of telecommunications fraud including but not limited to, toll fraud and voice mail box access, AirTouch Cellular shall apply diligent effort to prevent the occurrence of unauthorized use of services, however, AirTouch Cellular is not responsible for damages relating to such misuse of Customer's service or equipment. 6. Use of Senrice. Service may be suspended immediately in the event of any abuse or fraudulent use of service. Other than for Customer's internal accounting functions, Customer or Subscribers are not authorized under this Agreement to provide reseUer or rebiller services to third parties, 7. Market Availability. This agreement is valid only in AirTouch Cellular markets as specified in Schedule 1. The airtime charges set forth in Paragraph 1 do not include long-distance or roaming charges, 8. Cellular Telephone Numben. AirTouch Cellular may be required to change telephone numbers and retains the right to change numbers. AirTouch Cellular will use its best efforts to ensure that cellular telephone number changes are not necessary. Customer and Subscribers will be notified in advance of any change in cellular telephone number(s). 9. Billing. Monthly service charges are billed in advance. Customer agrees to pay for service within 30 days after receipt of a correct invoice, Prepaid charges will not be refunded for termination of service prior to the end of the billing cycle, Late payment charges may be assessed on undisputed past due amounts at one and one-half percent (1-112%) per month, or the highest lawful rate, whichever is more. AirTouch Cellular will use best efforts to resolve payment disputes and reserves the right to suspend service on accounts more than thirty (30) days past due. 10. Taxes. Customer agrees to pay directly or, if AirTouch Cellular pays directly, Customer agrees to reimburse AirTouch Cellular for all taxes and other charges levied on service, telephone, or equipment by federal, state, or local authorities or foreign governments, except for taxes based on AirTouch Cellular's net income, 11. Default. In addition to any other material breach by Customer, if Customer fails to pay any undisputed amounts due under this Agreement, or if Customer makes an assignment for the benefit of creditors, whether voluntary or involuntary, AirTouch Cellular may(1) terminate all service under this agreement without notice~ (2) receive from Customer all amounts due under this Agreement plus all costs of collection, attorney fees, and cost incurred in collecting amounts owed hereunder , including attorney's fees and costs incurred in any bankruptcy filed by or on behalf of customer~ and (3) pursue any other remedy at law or in equity, 12. Limitation of Liability. AirTouch Cellular will strive to provide continuous service to Customer and Subscribers and notify Customer and Subscribers in advance of any planned temporary suspensions, AirTouch Cellular cannot be held liable for interruptions in service due to equipment failure, equipment or facilities shortages, strikes, acts of God, or other causes beyond AirTouch Cellular's reasonable control. AirTouch Cellular's liability, if any, in its operation of service or equipment shall not exceed the amount of AirTouch Cellular's prorated monthly charge for the service during the period affected or Five Hundred Dollars ($500,00) per affected phone if there is no charge for the service, AirTouch Cellular is not liable for damages caused by the use of equipment, including the risk of traffic accidents while using the equipment. AirTouch Cellular will not be liable for any other costs, delays, special, incidental, or consequential damages, physical injury or any other damages alleged under any theory. 95-c0rp.cont., 3 May 28, 1996 .... 13 Disclaimer of Warranties. AIRTOUCH CELLULAR MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO SERVICE OR EQUIPMENT, INCLUDING ANY IMPLIED WARRANTY OF MERCHANT OR FITNESS FOR A PARTICULAR PURPOSE. Customer and Subscribers acknowledge that all equipment has been determined solely by Customer and Subscribers to be suitable for its purpose, Customer and Subscribers have selected the equipment supplier, and AirTouch Cellular has made no representation or warranty with respect to the suitability or durability of the equipment. This does not deprive Customer and Subscribers of any rights Customer and Subscribers may have against any manufacturer or vendor of the equipment. Customer and Subscriber's sole recourse shall be against the manufacturer or vendor if equipment fails to operate to Customer and Subscriber's satisfaction or expectations. AirTouch Cellular will guarantee any installation of cellular phones performed directly by any qualified AirTouch Cellular employee or authorized agent. 14. Indemnity. Both parties will indemnify and hold hannless the other party, with respect to any third party claims, losses, damages or court actions arising from this Agreement, to the extent that the indemnifying party is liable or responsible for said third party claims, losses, damages or court actions, Indemnification will include, but is not limited costs and attorneys' fees, Each party reserves the right to defend any and all claims or court actions as a result of this Agreement. 15. Confidentiality. During the performance of this Agreement, the parties may have access to certain Confidential Infonnation of the other party, Each party agrees that it will not disclose to any third party or use of the Confidential Infonnation for any purpose other than those purposes identified for such party in the Agreement without the prior written consent of the other. The terms oftbis section will survive for one (I) year after any termination of the Agreement. 16. Notices. Notices required by this Agreement between the parties shall be signed by an authorized representative of the party and delivered to an authorized representative of the other party, or sent by mail to the following address (which may be changed by written notice to the other party): City of Woodburn. Oree:on 270 Monte:omerv St. Woodburn. Oree:on 97071 A TIN: Finance Department AirTouch Cellular 3350 - 161st Avenue SE Bellevue, WA 98008-1329 ATIN,: Sales and Distribution 17. Dispute Resolution. All claims arising out of this Agreement shall be resolved by arbitration in accordance with the then current rules of the American AIbitration Association. The arbitration shall be conducted by a single arbitrator engaged in the practice of law, The arbitrator's decision and award shall be final and binding and may be entered in any court with jurisdiction. This Agreement will be governed by and construed in accordance with the laws where service is provided. 18. Waiver. In the event that a court, governmental agency, or regulatory agency with proper jurisdiction determines that this Agreement, or a provision of this Agreement is unlawful, this Agreement, or that provision of this Agreement to the extent it is unlawful, shall terminate, If a provision of this Agreement is terminated but the parties can legally, commercially, and practicably continue without the terminated provision, the remainder of this Agreement shall continue in effect, 19. General. 19.1. Each party agrees that this Agreement and the Schedules, Exhibits, and any Addendum attached to and incorporated herein, make up the complete and exclusive Agreement between Customer and AirTouch Cellular, 19.2. This Agreement constitutes the entire understanding between Customer and AirTouch Cellular with respect to service provided herein and supersedes any prior agreements or understandings, 19.3. Failure or delay by either party to exercise any right, power, or privilege hereunder, shall not operate as a waiver hereto. 20. Assignment. This Agreement may not be transferred or assigned in whole or in part by either party without prior written consent of the other party; except, however, AirTouch Cellular may assign or delegate its rights and obligations hereunder with out the consent of Customer to any parent or subsidiary of AirTouch Cellular. Notwithstanding the above, Customer recognizes and acknowledges that AirTouch Cellular has entered into a joint venture agreement with AirTouch Communications, under which the joint venture entity ('Joint Venture") or AirTouch Communications may become successor-in-interest to AirTouch Cellular. For and in consideration of the mutual covenants contained in this Agreement, the parties hereby expressly agree that the services, duties and obligations to be performed under this Agreement by Customer may be assigned to the Joint Venture and/or AirTouch Communications by AirTouch Cellular, and the duties and ~rp.cont.. 4 May 28, 1996 lbligations to be performed under this Agreement may be delegated to the Joint Venture and/or AirTouch Communications by AirTouch Cellular. IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date and year indicated below. US WEST NEWVECTOR GROUP, INC., db.a. AIRTOUCH CELLULAR Rod Kerkerinl!: PrIat NlIIIle Date City of Woodburn. Ore2on Customer . / ../ 0:~/V-Jr'~ omc:er Signa I NancY Kirksev 6/11 / 96 Print Name Date ACCOURt Exeadive Signature SaIea MlUUlEer Sipature Patricia RaI!:lUl PrInt Name Date Area Geaeral Manacer Signature Joe Dodson PrIat Name Date 95-corp.cont.. 5 May 28, 1996 -r- .' AIRTOUCH CELLULAR CORPORATE ACCOUNT CELLULAR SERVICE AND EQUIPMENT AGREEMENT SCHEDULE 1 AIRTOUCH CELLULAR MARKETS MSA NAME SYSTEM A I B Eugene. OR Portland. OR Salem, OR B B B RSA NAME SYSTEM A I B Oregon 4 (Albany) Oregon 4 (Lincoln City) Oregon 4 (Newport) Oregon 4 (Corvallis) Oregon 1 (Astoria) Oregon 1 (Seaside) Oregon 1 (Tillamook) Oregon 1 (McMinnville) Oregon 1 (Newberg) B B B B B B B B B 95-c0rp,cont.. 6 May 28, 1996 -r ...q" .""_."-"-"q,,-_.~,_._----,"T""---"--'-'-"------'-'"-"--' ,.w".'